Profile: Jim McLean

Can you tell us a bit about your career?

I was aware of the solicitor profession from an early age through my father’s practice in Dunoon and his membership of the Law Society of Scotland, various of its Committees and, later, his Vice-Presidency. But it was my own argumentative disposition, along with some sense of justice, that initially attracted me to the law. When I qualified, I discovered the responsibility that goes with giving advice that people act upon. That was when I really started to research and learn the law. 

Having previously done almost no commercial law, I became a commercial generalist. On UK accession to the European Economic Community in 1973, I seized the opportunity to learn and practise the ensuing new law. For me, this mainly involved checking the EEC competition compliance of commercial contracts. Some of these were intellectual property licences, which led me to learn about IP law. Later on, I developed a practice in pan-British secured lending. Having read English law before coming to Edinburgh, and knowing what English lawyers understood by “equity”, I had clear comparative ideas about what could and could not work for Scotland, including for the North Sea. 

From EEC accession, the Society, along with the Faculty of Advocates, gave enthusiastic support to the Scottish arm of the Young European Lawyers scheme, organised by the British Council. Newly qualified lawyers from the European mainland were given an intensive three-week course in Scots law at Edinburgh Law School, followed by short internships with Scottish solicitors, advocates and judges. They left with positive memories of their time here and many lasting friendships were formed. 

Regarding European Young lawyers, I was able to mentor many interns over about a decade, as well as contribute to the course on the organisation of the legal profession in Scotland as it existed at the time.

What have been the biggest changes for the profession since you began your career, and what do you see as the main issues facing the profession now?

Price competition and time-based charging combined to bring an end to earlier business models that relied on client loyalty. Those models enabled relatively high charges on major events such as house purchases and sales and executries to cross-subsidise otherwise uneconomic kinds of day-to-day legal help. The changes also ushered in a management culture akin to that of the financial services industry. Billing targets became the norm. Candid critical advice became unwelcome. Much documentation became standardised; if conceived in England, it did not, after“kilting”, necessarily align with or make optimum use of Scottish concepts. 

The commencement of the Moveable Transactions (Scotland) Act 2023 should at long last rectify the inadequacies of the Scots law of fixed security over moveable property. However, the negative reception and consequent eclipse of Sharp v Thomson seem to have put paid to any simplified protection of price-paid purchasers of rights awaiting entry in a register of immovable or intellectual property.  

In terms of today’s challenges, the profession has constantly had to battle to keep its independence. Lawyers in a law firm need the reassurance that those in a position of management or control of a law firm are subject to the same or equivalent professional rules as those whom they manage. As for the Society, let us keep in mind that the UN principles (adopted in 1990) on Professional associations of lawyers include (in para 24) that “The executive body of the professional associations shall be elected by its members and shall exercise its functions without external interference.” 

You have worked extensively with a variety of the Society’s committees. What would you say about this part of your career? 

The Society’s committees have contributed immensely to the continuing adaptation and modernisation of Scots law. While Scotland remained a territory within the European Union, this included ensuring that the Society responded fully and constructively to legislative proposals that would affect the entire European Single Market. Today, vigilance remains necessary to ensure that the (reserved and devolved) law of Scotland is in line with the international obligations of the UK.

Occasionally, committees need to recognise and resist attempts to enlist their aid in the promotion of legal analyses favoured by interest groups.

You have also represented the Society at the European meetings of the Union Internationale du Notariat Latin. Could you tell us a bit about this experience and what it meant to you?

This link maintained the Society’s connection with an apparently very different profession whose day-to-day work covered similar ground to that of solicitors. It was an opportunity to ensure that the deliberations of that Union were opened to a distinctively Scottish voice. 

What will you miss most about your work with the Society? 

I relished the opportunity to bat around ideas with others facing similar issues in their practices and to share views on possible solutions. I will continue to be involved with the working party on the proposed National Care Service and in doing so, I hope to contribute to ensuring that account is taken of procurement and state aid requirements to keep open policy options that might otherwise become precluded.

What keeps you busy outside of your interest in the law?

My family and being a grandparent are a joy. It is a privilege to watch young people grow and make their choices. As a church elder, I have learned something about the ways of church governance and tried to bring a lawyer’s perspective to knotty issues.

I enjoy travel, particularly in mainland Europe and, as I am a keen motorist, especially by car.

I am interested in late 19th and 20th century European history. Having in my earlier years taken for granted that civilised debate, democracy and the rule of law would endure in the West beyond my lifetime, I am no longer confident about this. Evidence and analysis seem to be eclipsed by identity and dogma. Difficult issues are treated as straightforward. Opponents are not merely misguided but wicked.

What is next for you, personally?

I have given occasional seminars on aspects of EU competition law to LLM students at Edinburgh University Law School and may do this for a bit longer. Apart from that, more reading and travel.